What happens in case of return of the legally dead

The reappearance of Brenda Heist last week after being declared legally dead has brought me all sorts of questions.

The Pennsylvania Statute that governs the property of absentees and persons presumed dead is at 50 Pa. Cons. Stat. §§ 5701 through 5706. Generally, if a person disappears and is absent from his place of residence without being heard of after diligent inquiry, the county court may make a finding and decree that the absentee is dead and of the date of his death.

There are notice requirements. The matter must be advertised in a newspaper of general circulation in the county of the absentee's last known residence and in the legal journal once each week for four successive weeks. Notice includes the hearing date, which must be at least two weeks after the last appearance of the advertisement. At that hearing evidence will be heard concerning the alleged absence, including the circumstances and duration thereof.

An unexplained absence for seven years may be sufficient ground for finding that the absentee died seven years after he was last heard of. This date of death is the starting presumption, but it is important to note that the court may declare an absentee dead before the expiration of 7 years. Conversely, the presumption can be overcome and a 7 year absence may not justify a finding that the absentee died. Evidence that the absent person was a fugitive from justice, had a bad relationship, was having money troubles, or had no family ties or connection to the community can be reasons not to presume death.

The fact that an absentee was exposed to a specific peril of death may be sufficient ground for finding that he died less than seven years after he was last heard of. An example would be an airplane crash. Passengers and crew of the Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after Carpathia arrived at New York City.

In 2002, the statute was amended to provide that the terrorist attacks of September 11, 2001 are specific perils within the meaning of the law, and a court would be justified to immediately determine that the presumed decedent died on September 11, 2001. Also, for persons presumed dead on September 11, 2001, the requirements of notice to the absentee and of the need to post a refunding bond for property distribution are eliminated.

What happens to the presumed decedent's property?

The decedent's property is administered by an executor of the will or administrator of the estate just as in the case of other decedents. However, the executor or administrator make not make any distributions to beneficiaries except by a court decree. The court, in awarding distribution, must require of any beneficiary a refunding bond, with or without security and in such form and amount as the court shall direct. The bond shall be conditioned that, if it shall later be established that the absentee was in fact alive at the time of distribution, the distributee will return the property to the presumed decedent, or if it has been disposed of, will make restitution.

What about marriage?

This is handled by a different statute, 17 Pa. Cons. Stat. §§ 1701 through 1704. The provisions are similar to the ones for the presumed decedent's property. Even though the absentee spouse who is declared to be presumed dead is in fact alive, the remarriage of the non-absentee spouse is valid for all purposes as though the former marriage had been terminated by divorce.

What about Life Insurance?

According to C. Edgar Sentell, author of the article The Missing Insured and the Life Insurance Death Claim appearing in FDCC Quarterly, Vol. 54 No. 2 (Winter 2004), the most difficult aspect of the problem of a missing insured is when the insurance company pays the amount of money due under the policy and the insured reappears. If the company pays the full death benefit and the insured thereafter reappears, the company will generally have a claim against the beneficiary usually on the grounds of mutual mistake of fact. When a compromise settlement has been made, however, the company may have much more difficulty in recovering the policy proceeds. To avoid any questions on this score, the company could obtain from the payee a repayment agreement at the time of making settlement, or attempt to have such a provision incorporated in the decree if there is litigation to establish the claim. A bond with adequate surety is even more desirable from the insurance company's standpoint.